Case Study 1 (Torts, Negligence, Workplace Health, and Safety)

Question a)

Answer:

Yes, I agree that Leon has the right to take legal action against the torts of the negligence of the shopping center. According to the case study in hand, Leon is the plaintiff (P) while the shopping center is the defender (D). Leon is the customer and plaintiff which can take legal action against the defender for failing to provide safety and breaching the duty of care by their negligence. Donoghue V Stenson 1932 is the manufacturer and they claim that we provide a duty of care to our customers. When a company provides sensible care to its customers, so it must provide the required safety and avoid any mishap which can cause potential harm or injury to the customers (Bluff, 2017, p.612). D has not attempted a try to make the floor dry and ensure the basic measure of safety so D is found guilty in this case.

According to the case study in hand, I would agree that the harm or injuries of P were due to the careless act of D, and the claim of P for compensating his losses is right. It has been noticed that he was physically fit when entered the shop, so the injury was caused by this accident due tot eh negligence of the occupier. There is no other evidence of the causes of the damage but slipping on the floor in the premises of the D. The damage was reasonably foreseeable and caused directly by the negligence of D. The case WagonMound (1961) refers to some standards which provide evidence of the involvement of a person in breaching the of duty of care. Hence P has the right to claim compensation losses and medical costs. Therefore, P can sue the occupier for the compensation of his physical and financial losses.

Under the occupier’s act, 1983 Leon can sue defender. Because the occupier of the property is held responsible for any injuries and losses of the plaintiff inside his premises because it is the responsibility of the shop owner to ensure the safety of its customers.

b)

Answer

There are two possible defenses which can be used by the shopping center under the common law of defenses which are discussed as under:

Contributory Negligence:

The shopping center in its defense can argue on the partial injury to Leon. For instance, there was a partial injury, and they added that he was already injured when he entered the shopping center and this incident happened, and most probably his injury occurred after this incident somewhere else. However, this is weak evidence put by the defender, because he was walking on the floor without any distraction, and was not found that he was using a phone or running on the floor. So under the contributory negligence, the defender has provided a weaker argument in his defense.

Assumption of Risk:

While defending this case the defender may argue that P has assumed the risk under the assumption of risk. The occupier has not displayed the precautionary notice near the water, therefore, Leon could not be blamed for his negligence (Identifying workplace hazards | Fit For Work, 2017, n.p). The occupier of the shop can also state that due to rain outside the pathway could be wet, however still D should display the warning notice on the pathway to warn visitors about the risk of damage. D can also argue that due to rain the shoes of P were wet, and he didn’t wipe his footwear before the entrance to the shopping center. However, the floor already had enough water before his entrance to the center. Latimer Vs ACE company (1953) where the employers of the company were were fined for the wet floor due to rainwater on the premises of the company which made it slippery. Latimer was the victim who slipped on the floor and filed a case against the company in the court to compensate for his losses. He argued that the management of the company should close the factory if the floor was wet to avoid any mishap. However, it is not reasonable for the company to close its business during rain and this precaution may be expensive. So there is nothing with D to provide any strong argument to defend its case.

Case study 2: Business Structure

a)

Answer

There are many business structures and each business structure has its own set of advantages and limitations. Choosing the right business structure for a college is an important decision, and it has a greater impact on the overall organization’s structure and procedures. It depends on the nature and scope of the business. There are many reasons to incorporate your business. A small business with a single owner can use sole proprietorship. However, in the case of Warwick and Sunny, they are two partners so the partnership is the simple form for their college. To get more advantages and to have a plan to expand the business in the future, a limited liability company (LLC) is more secure (Mancuso, 2016).

I will recommend the LLC corporate structure to Warwick and Sunny for their new college business. LLC’s business is a secure and formal business structure. It is a step higher than a partnership, however, in this structure, the investor has limited liabilities to pay its debts. In case of loss, the owners will not pay from their assets. This business structure provides an advantage in taxation, here you can pay tax only once, not a differed taxation like company structure. It protects a business, and the chances of fraud and other risks are reduced. It can also help the owners to get funds from the investors, and lending institutions. Banks and other financial institutions consider offering loans to the college if it is incorporated. The LLC company is a suitable structure to get advantages from these institutes (Cole & Sokolyk, 2018).

b)

Answer

Registration Process

There are seven steps to register an organization as an LLC. For this registration, you need to do some paperwork with the government of the state where the business is located.

Step 1:

Choose a unique name for the business which is not already used by other organization.

Step 2:

Reserving a name, it is an optional step. The name you have chosen can be reserved if you are not going for registration right away. So the reserved name can be registered later.

Step 3:

For LLC registration a business needs to choose a registered agent which is sometimes called statutory agent.

Step 4:

To prepare an LLC operating agreement, which is the roadmap to describe how the business will be run. It specifies the owners of the business, shares of the owners, profit and loss percentage, and the voting rights of the members (Kelsen et al., 2015).

Step 5:

File the paperwork of the organization with the state. Every state has its procedures for registering an organization as an LLC. The article of the organization is filed which includes:

Name of the LLC

Time of existence of the business

Name and address of the agent

Purpose of the business for which the LLC is established.

Step 6:

Achieve the certificate of the business when all the filed documents are approved. The state will issue the certificate to the business along with certain documents.

Step 7:

Register your business in other states, though it is an optional step. If a business wants to expand its market to other states it has to fill certain files and do some paperwork, so the concerned state will authorize the business to execute its operations.

Case Study 3 (Law of Contracts)

Question a)

Answer

In this case, Mr. and Mrs. Garmin have a contractual relationship with Tours with the US, because the company provides a written brochure, and the promises are quoted in the brochures. However, the final details of the package are provided in the final receipt. For the contract, few obligations must be fulfilled. The packages written in the advertisement brochure is not a valid contract. In this case study, the provided information is about the brochure in which the conditions of a valid contract are not satisfied. For a legal binding of the contract the following steps are essential:

There is an offer from one party.

The other party will accept the offer.

The second party will pay for the services or goods provided by the first party. Payment can be in cash or exchange of some valuable things.

There must be proof that can bound both parties legally.

The contract between these two parties is not fulfilling all the above-stated conditions of a contract. It is not necessary for a contract to be written it could be online and can be through telephone. The conditions should be written or stated, the contract doesn’t include any of our expectations and our assumptions. In this case, the couple was expecting what was mentioned in the brochure. The brochure could be outdated, and the couple had to ask for all the facilities given in the brochure to confirm these in their contract.

b)

Answer:

Breach of contract can be filed by the guests and claim for the poor services they received in the hotel, many of the services were not provided to them. Tour with Us is responsible for all the troubles the couple faced due to their negligence. Remedies for the breach of contract is not only design to punish the party who breached the contract. There are three major remedies for the breach of contract including injunction, restitution, and specific performance(Knapp et al., 2019). The injunction is a remedy which restricts a person or a party from a certain action. The specific performance and the injunctions are similar in many ways, however, there is a key difference. The specific performance is executing the orders on a certain party to perform a certain action. While the injunction restricts a person to do a specific job. As a lawsuit injunctions are issued as a remedy, like a breach of contract is claimed (Hesselink, 2016). Here the remedy of restitution can be applicable, where one party breach the contract due to incapacity, or misrepresentation. In the case of Mr. and Mrs. Garmin, the services were not provided because of their incapacity.

Case Study 4: Consumer Law:

a)

Answer

According to the consumer law of Australia, the customer can only claim for refund and replacement, when there is a certain major problem in the product. For simple change of mind regarding the specific product, asking for refund and replacement. According to the law, when a product or service for which you have paid, is failed to meet your needs, you have the right to refund, replacement, and repair. However, its remedy depends upon the nature of the issue, either it is major or minor.

What is not covered under the Australian consumer law:

According to the consumer law of Australia, there are certain conditions in which the businesses are not allowed to compensate for the losses and damages.

The problems are not caused by the conduct of its other products.

When the losses occur which is independent of their business and the product is in the possession of its customers.

It is generally perceived that large businesses are compensating their customers, while the small setups do not compensate for the losses because of their limited budgets (Howells & Wilhelmsson, 2017). Usually, in Australia organizations are fined for the allegedly breaching the Australian consumer laws which are misinterpreted.

In the case of Joanne, the company has mentioned in its policy vividly that there is no return or replacement for sales products. In the sales offers, the prices are reduced to a greater extent, so the company doesn’t accept a replacement. However, the company is willing to refund at the sales price, but not to the new price which is $ 25.

According to the consumer law of Australia. Joanne has the right to claim remedy for its losses in terms of replacement or refund.

b)

Answer:

In this, if Joanne proves that the contract is breached due to the customer service representative. Consumer law guarantees can protect the customers from the threat of losses, and allow them to repair, replace, or refund if the product is found faulty. If the customer is facing difficulty due to the customer representative staff, which is unethical action, and the employee must be given a warning (Bant & Paterson, 2019). The minimum punishment for this negligence is the issuance of a formal warning. When a formal notice doesn’t work so the position will be changed and would not be allowed to misguide the consumers. After the repetition of the same negligence the support staff, he or she should be fired from their position.

Case Study 5 (Employment Law)

a)

Answer:

Certain indicators can separate the classification between independent contractors and employees.

Employee:

Workers are held responsible to work as directed by employers, while the employers are responsible to set a pay rate to compensate them. Employees are restricted to share their job and responsibilities with others (Nesheim & Hunskaar, 2015, p.1419). The working hours, shift timing, and other standards should be set by the employers and the required equipment will also be provided to the employees.

Independent Contractor:

On the other hand, the independent contractor is hired as per need, and they have their control over the work. They are working with a flexible schedule, however, they have a certain deadline and specific tasks(Redfearn, 2016, p.1025). They have the authority to delegate their work and responsibilities to another person. There is a significant risk related to the profit and loss and they are responsible for any potential hazards. The employer is not paying any taxes on their behalf, so the contractor will pay all the taxes after their earnings, and the contract workers can wear uniforms on their own choice.

According to the case study in hand, Adam is an employee associated with Imperial Pvt Ltd. He is executing his duty according to the working hours set by the company, he is a driver and distributing the products of the company in the set routes. Furthermore, Adam is wearing the company’s uniform on which the company’s logo is printed. The company has hired him and assigned tasks to deliver whatever products of the company according to their guidelines.

In light of all the evidence from the case study, we can conclude that Adam is the employee of the company.

b)

Answer:

Certain tests can provide evidence that a person is an employee or contractor, these tests are conducted by the court and using the ATO standards. These tests have proved that Adam is an employee executing his job with the Imperial company, where it is working under the strict supervision of the employer. He is following the directions set by the company and working for the company according to their guidelines. Adam was injured while working in the company but Adam doesn’t have any written agreement.

I believe that the company is responsible for all the losses and injuries caused by their negligence and carelessness according to Common Law. It means that the employer is required to pay all the expenses related to the van such as maintenance and fuel etc. In the case of Zujis with its employer Wirth Bros, where he had faced injury during work for his losses he filed a case of compensation. The company had denied and stated that he is not our employee but a third-party contractor. However, the court had acknowledged that he was an employee because he was under strict supervision from the employer.

Therefore, in this case, the court has decided that Adam is providing his services as an employee, so his losses will be compensated by the company.

Case Study 6 (workplace health and safety)

a)

Answer

Here we will discuss certain regulations that Willow Engineering company as to practice in Victoria.

Precautionary steps by the employer and employees:

It is the responsibility of the employer to file the case of the injured employee for compensation according to the Act and instantly follow an injury.

The employer must fill the form of notification on behalf of the injured employee.

Steps required by the employees when an accident happens:

The employee is required to inform the supervisor.

In case of any risk or hazards observed by the worker, it should be reported to the management without any delay to control the hazards.

In this case study, we have found that Bret reported about the hazard of the cutting machine in which he was operating at Willow Engineering. His supervisor should have to follow the early guidelines to reduce the chances of losses.

Employer’s responsibilities:

1. The employer is required to provide and maintain a safe work environment where there are no hazards of losses and injuries.
2. The employer is responsible to train, provide instructions regarding occupational health.
3. The owners of the company have to strictly examine the work closely to overcome the risk of injuries and diseases.
4. Employers have to maintain the HSE documents of the employees.
5. Provide and maintain a safe and secure work environment.
6. The health condition of employees and the environment must be monitor to overcome the hazards of injuries and illness.

Responsibilities of Employee:

1. An employee while working in the field should take care of his health
2. An employee must fulfill all the requirements which the employer has set to meet the criteria of OHS (Artvinli, 2016, p.111).
3. Workers must report any workplace hazards, and fault in any machinery which can be a potential risk for the health and safety of employees.
4. Employees must cooperate with employers by following all the reasonable policies and procedures related to the health and safety of the workers who are notified to workers (Jurisic, 2017, p.e126).

b)

Answer:

If Willow Engineering follows a certain set of rules to ensure the health and safety of its employees, so they can control any health-related incidents in the future.

1. Willow Engineering needs information related to health and safety.
2. Understanding the hazards and risks associated with its operations and plant.
3. Ensure the use of appropriate safety tools and kits to overcome the risk or minimize the risk of injuries to a greater extent.
4. Provide training and instructions which are necessary to protect its employees from health and safety-related risks.

References

Mancuso, A. (2016). LLC Or Corporation?: Choose the Right Form for Your Business. Nolo.

Kelsen, M. S., Nakhre, T., Huang, S., Danforth, A., & Pfeffer, H. (2015). U.S. Patent No. 9,172,998. Washington, DC: U.S. Patent and Trademark Office.

Hesselink, M. W. (2016). Contract theory and EU contract law. In Research Handbook on EU Consumer and Contract Law. Edward Elgar Publishing.

Knapp, C. L., Crystal, N. M., & Prince, H. G. (2019). Problems in Contract Law: cases and materials. Aspen Publishers.

Howells, G. G., & Wilhelmsson, T. (2017). EC consumer law. Routledge.

Bant, E., & Paterson, J. M. (2019). Exploring the boundaries of compensation for misleading conduct: The role of restitution under Australian consumer law. Sydney L. Rev., 41, 155.

Artvinli, F. (2016). The ethics of occupational health and safety in Turkey: responsibility and consent to risk. Acta bioethica, 22(1), 111.

Bluff, E. (2017). The regulation of work health and safety. In DRAHOS P. (Ed.), Regulatory Theory: Foundations and applications (pp. 611-630). Acton ACT, Australia: ANU Press. Retrieved from http://www.jstor.org/stable/j.ctt1q1crtm.47

Identifying workplace hazards | Fit For Work. (2017). Fit For Work. Retrieved 8 October 2019, from https://fitforwork.org/blog/identifying-workplace-hazards/

Jurisic, M., Bean, M., Harbaugh, J., Cloeren, M., Hardy, S., Liu, H., … & Christian, J. (2017). The personal physician’s role in helping patients with medical conditions stay at work or return to work. Journal of occupational and environmental medicine, 59(6), e125-e131.

Nesheim, T., & Hunskaar, H. M. (2015). When employees and external consultants work together on projects: Challenges of knowledge sharing. International Journal of Project Management, 33(7), 1417-1424.

Redfearn III, R. L. (2016). Sharing economy misclassification: Employees and independent contractors in transportation network companies. Berkeley Tech. LJ, 31, 1023.

Cole, R. A., & Sokolyk, T. (2018, July). How do firms choose legal form of organization?. In 31st Australasian Finance and Banking Conference.